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INSTITUTE OF EMPLOYMENT RIGHTS COMPARATIVE NOTES

tradition and change in australian labour law ANTHONY FORSYTH


about the author Anthony Forsyth is Legal and Planning Officer at the Transport Workers’ Union of Australia (Victorian Branch). He has worked as a specialist industrial and trade union lawyer at Maurice Blackburn & Co. in Melbourne; as Policy Adviser to the Hon. Simon Crean MP, federal Shadow Minister for Industry and Regional Development, and as Associate to Justice Alan Boulton of the Australian Industrial Relations Commission. He is also an Executive Member of the International Centre for Trade Union Rights, Australian National Committee. The views expressed in this paper are entirely his own. Readers interested in obtaining further information about any aspect of the Australian system of labour law discussed in this paper may contact Anthony at the TWU, 52-56 Rouse Street, Port Melbourne, Vic. 3207, Australia. This publication, like all publications of the Institute, represents not the collective views of the Institute but only the views of the author. The responsibility of the Institute is limited to approving its publication as worthy of consideration within the labour movement.


tradition and change in australian labour law ANTHONY FORSYTH1

Institute of Employment Rights Comparative notes ISBN 1 873271 58 1 April 1998 160 Falcon Road London SW11 2LN 0171 738 9511 email ier@gn.apc.org designed by Megan Dobney printed by Upstream (TU) 0171 358 1344 ÂŁ5 for trade unions and students ÂŁ10 others

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foreword This booklet is the first in a series of short Comparative Notes to be published by the Institute. The aim of the series is to provide the UK labour movement with an insight into how labour law operates in other countries and to offer important lessons from the experiences of trade unionists around the world. There can be little doubt that UK labour law is in need of reform. Our failure to meet international standards and European best practices is well documented. Without reform we are in danger of helping to undermine both the international standards to which we are bound and the attempts by other governments to maintain and develop a social agenda based on those standards. It is hoped that this series of Comparative Notes will help to inform the debate about the kind of laws we would like to see replace the existing framework of legislation. By examining practices in other countries we hope to highlight both the dangers of some policy proposals while at the same time opening minds to policy initiatives not yet considered in this country. This publication focuses on employment practices in Australia. It highlights the fact that Australian labour law has been adversely affected by the “deregulatory path taken by Britain, the United States and New Zealand�. But it also offers an alternative model for legislative reform and shows how policy proposals regarded as extreme in the deregulated labour market of Britain can be seen to be operating successfully and securing both economic and social benefits for workers. The aim of this booklet and the series as a whole is to offer fresh ideas for the labour movement to consider. In this paper the author looks at a number of policy initiatives raised in the Institute’s own proposals for legislation (Working Life. A New Framework of Labour Law, 1996) and compares them to the Australian system of labour law. We hope you enjoy this new series of Institute publications. Carolyn Jones Director

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introduction In 1996 the Institute of Employment Rights published a comprehensive report outlining an alternative framework for British labour law, including all aspects of the employment relationship, minimum employment standards, collective bargaining and trade union rights (Ed. Ewing, 1996). This initiative was in part intended to provide an incoming Labour administration with options for reform after 18 years of Conservative government, the effect of which had been (through legislative and other means) to significantly diminish workers’ rights and the role of trade unions in Britain. The Labour Government elected to office in May 1997 appears far from eager to pick up on the measures outlined in the Institute’s report and has shown little enthusiasm for legislation to improve the position of British workers. Indeed, in its determination to win over the business community, the Government has gone to great lengths to distance itself from the trade union movement, and the Prime Minister has ruled out any reversal of some of the harshest anti-union measures of the Conservative years. The reversal of the trade union ban at GCHQ, the introduction of a national minimum wage (which probably will not be in place until 1999), some form of legislative right to recognition for trade unions and the ending of Britain’s “opt-out” of the European Union Social Chapter are the only substantial measures announced to date. Because of the Government’s apparent lack of interest in taking any action beyond these measures, it must constantly be reminded of the need for substantial reform of British labour law. Apart from stressing to the Government the need to revisit the blueprint embodied in the Institute’s 1996 report, the law and practice of other countries should also be examined. Where it is thought they might be useful or appropriate for would-be reformers of the law in Britain, these sources should be drawn to the Government’s attention. The purpose of this paper is to conduct such an examination of Australian labour law, highlighting aspects which might be considered as potential models for legislative change here. In doing so, it is acknowledged that some of the concepts examined in this paper will not be new to

1: The author wishes to thank the following for their assistance in preparing this paper: Richard Mitchell, Director of the Centre for Employment and Labour Relations Law at Melbourne University, for his comments on a draft; Carolyn Holbrook for assisting with editing; and Leigh Johns and Professor Ron McCallum for information and materials.

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Tradition and change in Australian labour law is the first in a series of Comparative notes published by the Institute of Employment Rights. The Institute was launched in February 1989. As a labour law “think tank” , supported by the trade union movement its purpose is to provide research, ideas and detailed argument. The Institute provides tools of analysis and debate for the trade union movement in the area of labour law. We are not a campaigning organisation. The Institute does not assume that legal measures can offer ultimate solutions for political, economic and social problems. However, it recognises that law has a part to play in influencing the employment relationship, both individually and collectively. Institute of Employment Rights 60 Falcon Road, London SW11 2LN

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